THOMAS G WULF, Complainant

NEW RICHMOND POLICE DEPT, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed October 27, 2009
wulfth . rsd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant, age 51, alleges that he is the oldest member of the New Richmond Police Department and that he was denied various training opportunities and opportunities for job assignments because of his age, was denied overtime because of his age, and was required to present a "return to work" slip when he reported back to work after sustaining an injury, when younger workers were not asked to do so, all in violation of the Wisconsin Fair Employment Act.

The Wisconsin Fair Employment Act (hereinafter "Act"), contains several exceptions to the prohibition against age discrimination, including the following:

111.33 Age; exceptions and special cases.

(2) Notwithstanding sub. (2) and s. 111.322, it is not employment discrimination because of age to do any of the following:

(f) To exercise an age distinction with respect to employment in which the employe is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.

The complainant's employment falls within the hazardous occupations exception cited above. See, Wold v. City of Eau Claire (DILHR, Nov. 26, 1976)(all law enforcement occupations are within the hazardous occupations exception, regardless of the degree of actual hazard in a particular position). The exception provides a broad exemption to the age discrimination provisions of the Act. It is appropriate to dismiss a complaint of age discrimination where the employment involved is a hazardous occupation which is exempt from the prohibition against discrimination based on age, pursuant to Wis. Stat. § 111.33(2)(f). James E. Johnson v. LIRC, 200 Wis. 2d 715; 547 N.W.2d 783 (Ct. App. 1996). The age complaint of an individual in a hazardous occupation does not state a cause of action because the Act specifically exempts hazardous occupations. Diedrich v. City of Kaukauna (DILHR, Dec. 1, 1976); Bunde v. LIRC (Dept. of Health and Social Services) (Dane Co. Cir. Ct., July 9, 1981)(employees over age fifty-five were not discriminated against when they were denied transfers to hazardous occupations).

In his petition for commission review the complainant argues that if the respondent can establish that he was unable to physically or otherwise perform his duties, then fine, as that is the defense found in Wis. Stat. § 111.33(2)(a). The complainant contends, however, that carte blanche age discrimination against law enforcement officers over the age of 40 has no rational basis and cannot be the intent of the law. The complainant's argument fails. If the legislature intended that the respondent's sole defense against an age discrimination claim should lie under Wis. Stat. § 111.33(2)(a), which provides that it is not age discrimination to terminate the employment of any employee physically or otherwise unable to perform his or her duties, it would not have also enacted Wis. Stat. § 111.33(2)(f), which specifically and broadly exempts employment in hazardous occupations from the age discrimination provisions of the Act. Clearly the legislature did intend to exempt law enforcement officers from coverage under the age discrimination provisions of the Act, whether or not the respondent could establish that the complainant was unable to perform the job.

The complainant further argues that the statute is void as violative of his constitutional rights to equal protection. However, the commission lacks the authority to address this argument. An administrative agency is not empowered to rule on the constitutionality of the statutory provisions it administers. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, Dec. 13, 2007); Rathbun v. City of Madison (LIRC, Dec. 19, 1996), citing, McManus v. Revenue Dept., 155 Wis. 2d 450, 454 (Ct. App. 1990).

Because the complainant's employment is in law enforcement, a hazardous occupation, the respondent is not prohibited from exercising an age distinction with respect to employment decisions. His complaint is, therefore, not covered by the Act and was appropriately dismissed.

cc:
Attorney Carol S. Dittmar
Attorney Thomas A. Gilligan, Jr.

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